May 28, 2011

Another week yields another round of online commentary on Rakofsky v. Washington Post, et al., better known as Rakofsky v. Internet. My initial "Rakofsky week in review" post was sufficiently well received that another edition seems in order.

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Pleadings/Court Filings

No new filings have come to this blog's attention since last week's report. New York practice typically calls for responses to be filed within 21 days of service of the Summons, although that deadline is subject to extension by agreement. At this writing, the operative pleading remains the Amended Complaint. There have been no public indications of the state of service of that pleading within or without the State of New York.

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Rakofsky Online

I noted last week that some bloggers who are either named in or closely following the Rakofsky case were of a mind that Right-Thinking People should have a sense of Obligation compelling them to acknowledge and comment upon it. That sub-theme was the trigger for several posts, and those posts provide as good a starting point as any for this week's compilation:

[Non-defendant] criminal defense attorney Rick Horowitz began his post, "Railing Against Rakofsky," with a statement of his reasons for taking up the subject:

I’ve never been a fan of the draft. I’m a big fan of friends, though. And apparently some of my friends are calling me out for not having blogged about the latest poster-child for…what? I don’t know what I really think Rakofsky is a poster-child for.

Nevertheless, I submit to the draft, if for no other reason than to assure my friends that I do, actually, stand with them on Rakofsky.

What in some circles proved the most controversial Rakofsky post of the week came from [non-defendant] Dan Hull of What About Clients?/What About Paris?, who argued in his post—"Rakofsky Bad. Defendant Lawyers, 4th Estate & 1st Amendment Good"—his opinion that there is something unnecessary or excessive in the negative attention being leveled at plaintiff Joseph Rakofsky and his suit, neither of which may be worthy of the aggravation or the effort. Speaking as a litigator, he also articulated his practical, tactical discomfort at the prospect of litigants providing running commentary on a case in which they are actively embroiled:

Once you're served, you don't tell everyone you meet about it. Talking, writing and venting post-suit hits already-raw nerves, fans fires, generates unneeded 'evidence', . . . and stretches out proceedings and pretrial by-play by months and even years.

Needless to say many blawgers, including particularly a number of the defendants, were not persuaded to Mr. Hull's point of view.

From across the Atlantic on the Anna Raccoon blog, [non-defendant] Matt Wardman remarks:

This has happened before on the Net, and is the internet equivalent of erecting a large sign pointing at yourself labelled 'whompa', rather than the more logical action of stopping digging and hiding in the bottom of the hole you just created.

Non-lawyers also began offering their perspective on the case this week. First, on The Fraud Files Blog, forensic accountant/fraud examiner Tracy Coenen drew conclusions reflected in the title of her post: "Rakofsky suing the internet: Career suicide."

Closing out this week's survey, the latest from one who is following the case as aggressively as anyone. On his My Law License blog, [defendant] Brian Tannebaum turned his attention from the merits of the action to parsing the online presence of Joseph Rakofsky's legal representative, inviting his readers to Meet Richard Borzouye . . . Joseph Rakofsky's Lawyer.

The Rakofsky Weekend Update will return to Decs&Excs next week, if warranted by developments, public demand, and the blogger's inclinations.

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Update [0840 PDT]: Just in time to have missed the deadline for the original version of this post, [defendant] Scott "Simple" Greenfield, as alway on the lookout for the Teachable Moment, finds it:

Few matters offer more lessons than this one. It offers lessons about competence. Lessons about marketing. Lessons about responsibility, honesty, integrity. About greed. It offers lessons about hole-digging and making a bad situation worse. For young lawyers, particularly the Slackoisie, this is a case study that should be taught in every law school in the country. Any lawprof teaching professional responsibility who neglects the Rakofsky Effect has not fulfilled his duty.

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Disclosure/Disclaimer: I am a defendant in the Rakofsky case, because of my having written this post; I commented on my involvement in the action here. To the extent that I may have any non-public information concerning the case, I will not be sharing it in these update posts.

[Defendant] Mark Bennett has been updating regularly the compendium of links to Rakofsky-related posts on his blog, Defending People. My own selection of links is purely subjective and not necessarily comprehensive. I recommend regular consultation of the Compendio Bennetticus for the fullest range of responses to the case.

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Illustration: The calling card that served as trigger for Oscar Wilde's wildly unsuccessful libel action against the Marquis of Queensberry, via Wikimedia Commons. "The letter A in the bottom left corner was added at the time of the trial to indicate that it was exhibit A."

May 21, 2011

For the benefit of those not already following it obsessively, this post will compile the most recent publicly available developments relating to the Rakofsky litigation, in which Joseph Rakofsky is suing an array of media organizations, professional organizations and, above all, individual legal bloggers, claiming that he has been damaged by their publication of reporting and commentary on a murder trial in Washington, D.C., in which Mr. Rakofsky served for a time as defense counsel. This may be the first in a series of roughly weekly updates, or it may be a one-off. If new developments and public interest warrant it, I will compile and post on the case in the future. If not, then not.

I am a defendant in the Rakofsky case, because of my having written this post; I commented on my involvement in the action here. To the extent that I may have any non-public information concerning the case, I will not be sharing it.

Here, then, are the highlights of Rakofsky, Week 2.

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Pleadings/Court Filings

The Complaint in the case of Joseph Rakofsky, et. al. v. The Washington Post Company, et al., New York Supreme Court*, County of New York Case No. 10557-2011, was filed on May 11, 2011. That complaint named 74 defendants and stated two theories of recovery: defamation [libel] and violation of New York's Civil Rights law. A copy of the Complaint has been uploaded by [defendant] Mark Bennett, here.

On May 13, the lawsuit's existence was announced to the world by [defendant] Scott Greenfield on his Simple Justice blog in a post that gave to it the name by which it is now universally known: Rakofsky v. Internet.

This past Monday, May 16, Joseph Rakofsky and his attorney filed an Amended Complaint. That new pleading increases the number of defendants from 74 to 81, largely by adding parties who wrote or blogged about the Rakofsky v. Internet action itself in the first few days after it was filed. The Amended Complaint also expands the plaintiff's legal theories. In addition to the original defamation and civil rights claims, the Amended Complaint adds counts alleging "Intentional Infliction of Emotional Distress" and "Intentional Interference with Contract." A copy of the Amended Complaint is being hosted by [non-defendant, so far] Keith Lee at An Associate's Mind.

Because the case is still so new, there have been no filings with the Court apart from the first and second versions of the Complaint. The particular defendants who have been served with the complaint, or on whom Rakofsky may claim he has accomplished service, is not yet a matter of record.

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Rakofsky Online

[Defendant] Mark Bennett is maintaining an ongoing compendium of links to Rakofsky-related posts on his blog, Defending People. My own selection of links below is purely subjective and not comprehensive. I strongly recommend prowling through the Compendio Bennetticus for the full range of responses.

On his New York Personal Injury Law Blog, [defendant] Eric Turkewitz issued what is possibly the most-read Rakofsky retort so far: "Joseph Rakofsky — I Have An Answer For You". Eric's answer is not for the eyes or ears of the easily offended, even when it is translated in to Latin. That post also lofted the Rakofsky case to broader Internet notoriety when it was reported (with Eric's surname misspelled as "Tukewitz") by Cory Doctorow at boingboing.

The anonymous law student blogger [and defendant] known as J-Dog reported on his attempt at a negotiated resolution. The post includes an excerpt of an email from Joseph Rakofsky himself, who suggests that J-Dog (and presumably all of the other defendants) should have invested in a copy of the reporter's transcript from his D.C. murder trial "before you presumed to harm me."

Much of what is being said about Rakofsky is being said in 140-character snippets on Twitter. Those items can be found by a Twitter search for Rakofsky or for the hashtag #Rakofsky. Two comments here from defendants freshly added to the Amended Complaint:

And two more original defendants' remarks on a notable absence of comment on the case from certain quarters:

A last note on legal representation: Joseph Rakofsky is represented as plaintiff by attorney Richard Borzouye, discussed in this post by [defendant] Mark Bennett. Mr. Borzouye's own website, here, includes a description of his practice that begins with this:

Just two blocks from Grounds Zero, Borzouye Law Firm, P.C. is a full-service Wall Street litigation firm, with an elite New York State & Federal criminal practice . . . .

Emphasis added. Spelling in original. Good taste is timeless.

The Rakofsky Weekend Update will return to Decs&Excs next week, if warranted by developments and public demand.

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* Although the "Supreme Court" in federal practice and in most states is an appellate court at the highest level of the judiciary, in the State of New York the Supreme Court is the ground level trial court.

May 13, 2011

Lawyers, even the best of lawyers, are only human, no matter what they say. Lawyers, even the most experienced of lawyers, but particularly younger and less experienced lawyers, can and do make mistakes. When mistakes are made, in the law or in any other human activity, it is always to be hoped that the one making the mistake will (1) do whatever can be done to minimize or correct its ill effects on others, and (2) learn something from the mistake while moving on from it.

The "moving on" part is important. At least when they don't lead to your conviction of a crime, nearly all but the most notorious, blazing errors can in time be left behind if only you let time do its work. And, like a scabbed-over wound, most errors will heal themselves more quickly if you will Just Leave It Alone.

In early April of this year, a young attorney made what looks to have been a mistake: as reported in the Washington Post and elsewhere, New Jersey attorney Joseph Rakofsky, less than a year out of law school, took on the defense of a murder trial in the District of Columbia. Per the original Post report, he "exhibited what the judge said were numerous signs that he lacked knowledge of proper trial procedure, including telling the jury during his opening statements that he had never tried a case before." The Court directed a mistrial. Rakofsky, for whatever reason, seemed to boast about the outcome on his Facebook page. Inquiring minds in the legal blogosphere began to inquire, and soon "Joseph Rakofsky" had become a teachable phenomenon, an occasion for fellow professionals to derive what lessons they could about the state of the profession and the Do's and Don'ts of practice, procedure, ethics, marketing, and so on, and to share those lessons with their readers. On April 10, I wrote a bit about it here.

Joseph Rakofsky was a several days' wonder, but that was six weeks ago. Today, even most of those who had read the various original reports and posts would probably not be sparing him a thought. But Joseph Rakofsky will not Leave It Alone. Instead, Joseph Rakofsky has done the thing that we teach people to do in this country when they just won't Leave It Alone.

Joseph Rakofsky has filed a lawsuit, in the courts of the State of New York, seeking damages and injunctive relief based upon defamation and invasion of his civil rights.

He has filed a lawsuit against the Washington Post.

He has filed a lawsuit against other print media and reporters who covered the story.

And yes, I am among those named as defendants–we were dubbed almost immediately the Rakofsky 74–and I am specifically referenced in paragraphs 56, 57, 173, 174 and 188(w). At this writing I have not received service of a summons or other process, and perhaps I never will. Scott Greenfield, a New York practitioner himself, has pointed out that New York's "long-arm statute" contains an explicit defamation exception that should make it difficult or impossible for the court to obtain personal jurisdiction over non-New York defendants. (More on that interesting subject from my respected Canadian co-defendant, Antonin Pribetic, here.)

Prudence dictates against any extensive comment on the merits of this case at this time. Others are having their say, at length and with vigor, and a quick search for "Rakofsky" will surely lead interested readers to the highlights and low lights of that discussion, which they may judge for themselves. I will say that, upon review, I have no qualms about the propriety of what I wrote originally. Such lessons as I drew from the case of Mr. Rakofsky were and are there to be drawn.

As is the lesson with which I started this post: Oscar Wilde found that the road from perceived defamation to litigation led instead to incarceration, and with surpassing swiftness. There is no reason to believe that any fate quite so dire awaits Mr. Rakofsky, but there is also little reason to believe that he has done himself any long-term favors by electing to file suit. Already, in the fewer than 48 hours since his suit came to light, he has resumed his place as a source of merriment and a target of scorn across the Internet. There may be someone out there writing in his support, but I have not seen any sign of it thus far. I'm no clairvoyant, but I have to believe that at some point in his future a chastened Mr. Rakofsky will look back with regret on the course he has chosen this week, and wonder why he didn't or couldn't Just Leave It Alone.

Unknown scam artists, possibly Canadian or possibly Australian or possibly neither, have apparently "borrowed" the likenesses of several UK solicitors without permission in order to implement an email fraud scheme targeting attorneys.

The success of the scheme depends in part on the lawyer-victim's belief that he/she has been contacted by a fellow practitioner, an attorney with the Toronto law offices of "Wagner Elliot LLP." That firm does not in fact exist. It does, however, have a nice looking website.

As we will see below, "Wagner Elliot" is not real, but the contents of its website are derived directly—plagiarized, really—from the actual site of an actual law firm. For better or worse, the fake site's air of verisimilitude is enhanced by its being liberally sprinkled with the sort of empty rhetoric beloved of law firm websites the world over: Wagner Elliot is "committed to providing commercial legal advice of the highest quality at a sensible cost," and promises service that is "personal, proactive and practical." Just like everybody else.

The lovely building shown atop this post also appears on the Wagner Elliot LLP homepage, implicitly as a depiction of the firm's headquarters. The file name is "Building1.jpg". No such building is located at the Toronto address given by the faux firm. Research by Mr. Pribetic suggests that the address given on the site is actually that of either a housing project or a gas station. (The use on lawyer websites of photos of attractive buildings not otherwise connected to the lawyers in question was recently the subject of deserved scorn from Miami practitioner Brian Tannebaum.)

Intrigued, I undertook a bit of research of my own. A WHOIS search revealed that the "wagnerelliot.com" domain was first registered less than a month ago, by unknown Australian interests giving their address as a "Locked Bag" in Melbourne. The score so far: not real lawyers, and not even real Canadians.

Antonin Pribetic's inquiries went further, turning up what he initially described as "a UK mirror site," for Alan Lowe & Co., a firm of UK solicitors. If you compare the Lowe site (here) with the Wagner Elliot site (here) you will find them to be nearly identical, right down to the homepage appearance of "Building1.jpg".

I must confess that I initially leapt to the conclusion that all three of these firms are fictitious. Some further inquiry, however, quickly led me to a different conclusion: The fake firm of Wagner Elliot LLP has stolen its identity wholesale from the real firms of Mr. Davis and Mr. Lowe, without those gentlemen's knowledge or consent. So complete is the theft of those gentlemen's identities that their photographs have been incorporated in to the phony Wagner Elliot site, under false names.

Here you can view a photograph of the real Alan Lowe, solicitor. Here you can view the same photograph, now identified as that of the entirely fictional "Wagner Elliot." Mr. "Elliot" has even been given Mr. Lowe's biography. A slightly different photo of Mr. Lowe, as himself, appears on the Davis & Co. site.

Davis & Co. is the firm of solicitor Mark Davis, whose photograph in his own right at his own firm can be seen here. That same photo appears on the site of the Lowe firm (scroll down), as these two solicitors maintain a consulting relationship with one another. That same photo also appears, as you have no doubt guessed, on the "Wagner Elliot" site, where it is now identified as that of "Marcus" Davis. This Marcus fellow is credited, falsely, as "the author of ‘Bareboat Charters' published by Lloyd's of Canada Press." The genuine article, Mr. Mark Davis, is in fact the author of that treatise, now in its 2nd edition and published by Lloyds of London.

Solicitor Andy Coyle, who also consults with Mr. Lowe and who practices as well with the offices of Lennon & Co., is also purloined by "Wagner Elliot." He is given his own name on the faux site, although his school has been changed from the University of Liverpool to the University of Toronto.

Are there lessons to be derived from this sordid little affair? Of course. Among them, I would include these:

"Prospective clients" who approach via unsolicited email should be viewed with suspicion, and dealt with very carefully or not at all.

The artistic verisimilitude lent by a pretty website should be viewed with suspicion, and dealt with very carefully or not at all. In fact, no matter what the marketing mavens would like you to believe, the credibility value of any law firm website, no matter how qualified the attorneys behind it may be in real life, is statistically equivalent to zero. Direct contact, with real people, and with real and objective confirmation of skills and experience, is ultimately the only reliable measure of such things. Everything else is just shiny trinketry, distracting at best and, as here, actively deceptive at worst.

Watch your back in the Internet-connected world. This case demonstrates not only how easy it is to create a persuasive set of false appearances online, but also how easily You Yourself may be purloined. The wholesale repurposing of Mr. Lowe's website into the fake "Wagner Elliot" site means that the parallels between them are readily discoverable by a simple Google search. But who would think to make that search on a regular basis? The risk that your identity, and your professional and personal integrity, will be misrepresented online is real and ever-present, and troublingly difficult to catch or prevent.

So there we have it: an email confidence game, carried out by persons unknown, is sufficiently profitable that it warrants the investment required to create—to plagiarize, really—the appearance of legitimacy that a website is presumed to supply. The scandal of the thing is compounded by the brazen misappropriation of the names, likenesses, and reputations of at least three real practitioners. I would hope that no actual damage has been done to those gentlemen, who must be counted among the victims of this scheme. I would hope as well that the actual wrongdoers can be identified and brought to heel, although I confess my expectation is that they have already moved merrily on to their next unsuspecting targets.